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The Idealist’s Dilemma: Re-Imagining International Society

Published on June 9, 2014        Author: 

There has never been a better time to be an international lawyer.   International Law is at last emerging as a sophisticated legal system, in an international society experiencing take-off – to borrow two metaphors from development economics.

International Law is living its own 1860’s.   From the 1860’s, especially in European countries and the United States, the forms of law multiplied prolifically to respond to the vastly greater complexity and energy of society.   Legal fragmentation and institutional innovation were an expression of self-transforming social vitality – as they are now in the emerging international society.

International lawyers are the most privileged of all lawyers.  International Law is the law of all laws, the law of the whole human world.  International lawyers are front and centre in the drama of making the new international society.

But there’s something that greatly limits the part we can play in the project of making the law of the new international society.   The international world suffers from a grotesque poverty of philosophy.  That phrase – ‘poverty of philosophy’– was used by Karl Marx in 1847 to criticise the situation at the level of national society.

Our predecessors at the national level had the great advantage that they could use thirty centuries of intense thought about the forms of law and order required for the good life lived in a good society.

The grotesque poverty of philosophy at the international level means that the international world has one big idea.   Everything else is a deduction from that one big idea.

The one big idea is that the international world is not a social phenomenon but an anomalous excrescence from national societies, an exogenous unsocial dependent reality, isolated from the vast intellectual superstructure required for the survival and prospering of national society.

Re-imagining the one big idea of the international world is an exciting challenge for those of us who think for a living.   It is an exciting challenge for international lawyers.   And it is a particularly delightful challenge for those of us who are philosophical idealists.    Read the rest of this entry…

 
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Announcements: Conference in Bangor on Proof in International Criminal Law, ASIL Research Forum Call for Papers: New Deadline, Conference on 21st Century Borders

Published on June 6, 2014        Author: 
1.  From 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials. It promises to be of great interest to academics and practitioners alike. The full conference programme is available here. Register here.

2.  ASIL Research Forum – November 6-8, Chicago, USA. The American Society of International Law has extended the deadline for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting in Chicago November 6-8, 2014. Papers can be on any topic related to international and transnational law and should be unpublished.  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum. Review of the abstracts will be blind.  Proposals should be submitted online by June 15, 2014. To submit a proposal, or for more information, please visit here. 

3. The Keele School of Law is hosting a workshop on June 13th on the theme: ‘Theorising and Historicising International Law and the Environment’. The workshop brings together scholars with a shared interest in legal history to critically engage with the pre-history of international environmental law and its relationship to empire. Speakers include Yoriko Otomo (SOAS), Stephen Humphreys (LSE), Celine Tan (Warwick), Matthew Nicholson (Southampton) and Mario prost (Keele). For more information, and to register, please visit here.
4. Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, Friday 13th June 2014, University of Lancaster. 21st Century borders are coming under increasing strain with the recent annexation of the Crimea and disputes over islands and maritime delimitation in Asia, amongst others. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. Full details and registration information can be found at the Centre’s website www.lancaster.ac.uk/cilhr/

 

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Non-State Armed Groups in NIAC: Does IHL Provide Legal Authority for the Establishment of Courts?

Published on June 4, 2014        Author: 

The recent Serdar Mohammed v. Ministry of Defencecase has prompted a number of interesting and insightful posts addressing the issue of whether international humanitarian law (IHL) provides a legal basis for detention in Non-International Armed Conflicts (NIAC) (see, for example, here, here, here and here). This discussion offers an opportunity to address the issue of non-State armed groups, something not discussed in detail so far, with the notable exception of Aurel Sari’s post. In particular, the existing debate with regard to detention raises, more broadly, the issue of the legal authority extended to non-State armed groups party to a NIAC. In this post, I present an argument in support of one of the most controversial issues in this area: the authority of armed groups to establish courts.

Does IHL regulate armed group courts?

As is well known, IHL does not provide an explicit basis for the establishment of courts in NIAC, but rather regulates their operation in the event they are in fact established. In this regard IHL contains two relevant rules. Common Article 3(1)(d) of the Geneva Conventions of 1949 prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court’, while Article 6 of Additional Protocol II (AP II) requires that ‘[n]o sentences shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality’. Regarding the common Article 3 requirement that a court be ‘regularly constituted’, sources such as the ICRC Customary IHL Study note that a court may satisfy this requirement ‘if it has been established and organized in accordance with the laws and procedures already in force in a country.’ This would appear to support the argument that IHL does not provide a specific legal basis for the establishment of courts (authority is derived from the municipal law in force). At the same time, this reasoning also appears to preclude the convening of armed group courts since domestic law is (almost certainly) unlikely to establish a legal basis for non-State armed group courts. That said, it should be noted that the Pictet Commentary to the Geneva Conventions does not equate the regularly constituted requirement with a basis in municipal law, but rather focuses on the prohibition of ‘summary justice’.

Article 6(2) AP II – which ‘develops and supplements’ common Article 3 – dispenses with the ‘regularly constituted court’ provision, requiring instead that a court offer ‘the essential guarantees of independence and impartiality.’ The ICRC Commentary notes that this was a deliberate act during drafting, as ‘some experts argued that it was unlikely that a court could be “regularly constituted” under national law by an insurgent party’. Read the rest of this entry…

 
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Locating the Legal Basis for Detention in Non-International Armed Conflicts: A Rejoinder to Aurel Sari

Published on June 2, 2014        Author: 

Last month, in response to the decision of the English High Court in Serdar Mohammed v. Ministry of Defence (see Marko’s commentary here), we wrote a piece arguing that Mr Justice Leggatt correctly concluded that international humanitarian law (IHL) does not provide a legal basis to detain in non-international armed conflicts (NIACs). We argued (contrary to Kubo Macak) that authorization to detain in a NIAC does not come from IHL, but rather must be found either in domestic law or in other branches of international law. In particular, we explained that the fact that IHL applicable in NIACs recognises that detention will occur and regulates such detention does not mean that this body of law provides an authority to detain in NIACs. Locating the legal basis for detention has significant implications for assessing the legality of detention in a NIAC, under international human rights law (IHRL). Aurel Sari has written an articulate and thought-provoking response to our post. We wish here to respond to the key points of Aurel’s critique of our view.

The Distinction between IAC Law and NIAC Law

Aurel begins by responding to our claim that the regulation of internment by IHL does not necessarily lead to the conclusion that IHL authorises it. However, his main criticism ignores the distinction we draw between the law applicable in NIACs and that applicable in IACs. He argues that to ‘conclude that IHL does not authorize any of the activities it regulates takes the argument too far.’ We agree, and in fact we do not make such a claim. Rather, we consider this issue to reflect one of the key differences between the law of international armed conflicts (IACs) and that of NIACs. As we noted in our post, whereas IHL applicable in IACS specifically authorises combatants to engage in hostilities (Art 43(2) Additional Protocol I) and to intern combatants (Art 21(1) Geneva Convention III) and civilians (Arts 27(4), 42-3 and 78 Geneva Convention IV), in NIACs IHL is silent on all of these issues and instead merely regulates certain aspects of them.

The reason for this difference between the two bodies of law is partly a consequence of the context of the two types of armed conflict. Since IACs concern two or more states, one state or the other is going to be acting on the territory of a foreign state and acting with respect to individuals who are foreign nationals.  In these circumstances, only an explicit norm of international law can provide the legal authority for targeting, detention, etc. Without such a rule of international law, these actions would be unlawful as a matter of international law since states do not have authority to take such action on the territory of another state and have obligations to other states with respect to how they treat nationals of those other states.

However, the position in NIACs is very different since such conflicts relate (mainly) to intra-state, as opposed to inter-state, relations. Read the rest of this entry…